Persons in same-sex or any unmarried relationships are particularly vulnerable to the default laws that determine who can make financial and health care decisions for incapacitated persons, and to whom property devolves in the absence of a valid will or revocable trust.
The need for an estate plan — which addresses all types of property — is particularly acute for same-sex and unmarried couples who cannot rely on the states’ default decision-making and intestacy provisions to meet their needs.
Experience You Can Trust
At the Law Offices of Frye, Fortich & Garcia, P.L., estate planning is our specialty and our lawyers leave no stone unturned in guiding unmarried couples through the planning and implementation of a solid, customized estate plan.
Denial Of Estate And Gift Tax Benefits
Same-sex and unmarried couples are denied the estate and gift tax benefits afforded to heterosexual married couples.
- While a spouse may make unlimited gifts to a U.S. citizen spouse without adverse tax consequences, in 2025 a same-sex partner cannot give property to her or his partner in excess of $19,000 annually without triggering the gift tax.
- The estate tax deduction is unavailable to the estates of same-sex and unmarried persons whose property devolves to her or his partner. Raising sufficient funds to pay the estate tax, which is currently (2025) assessed federally at a rate of 40 percent on assets in excess of $13.99 million, often requires estates to sell real property and other assets at less than optimal market conditions to the detriment of the surviving partner, who could otherwise benefit from beneficial enjoyment or outright ownership of the real property.
Wealth Transfer And Rights Protection For Unmarried Couples
- Power of attorney allows an individual, or principal, to name the person, or agent, best suited to make decisions in the event of the principal’s incapacity.
- An advance health care directive allows the principal to determine what medical treatments should be administered or withheld if the principal becomes unable to make those determinations due to incapacity. In the absence of these documents, state law determines who among one’s next-of-kin makes these decisions, and it is usually not the healthy partner of an unmarried or same-sex couple.
- A valid will and revocable trust enable an individual to decide who should inherit her or his property, rather than defer to state intestacy provisions. These documents also allow an individual to name her or his personal representative (or executor), trustee and the guardian of minor children, rather than leaving those decisions to the state court.
Powers Of Attorney For Unmarried Partners
Establishing power of attorney is a particularly important issue for same-sex couples who are not legally married. Hospitals may restrict access to a person who is incapacitated or in serious condition to family members only.
If you are in a same-sex relationship and not legally married, it is critical to clearly state in legal documents your wishes regarding who should make health care and financial decisions on your behalf. We provide a welcoming environment to members of South Florida’s lesbian, gay, bisexual and transgender (LGBT) community. Some common LGBT concerns can impact estate planning strategies. Let us review those with you.
The Life Estate: Protecting A Partner’s Right To Remain In A Shared Home
A life estate deed gives a surviving partner with no actual ownership in a shared home the right to continue to live in the home until he or she dies or moves into a nursing home. At such time, the home passes on to children or other designated heirs. In some cases, the agreement will set aside money to cover maintenance and other expenses.
The life estate deed also has the advantage of avoiding interference from the Probate Court.
Designated Beneficiaries For Other Assets — Keeping Assets From Unintended Beneficiaries
For assets such as life insurance, IRAs, annuities and certain pension plans that pass to designated beneficiaries, periodic review of the plans’ beneficiary designations is critical to ensure that such assets do not fall into the hands of unintended beneficiaries.
Life Planning: A Domestic Partnership Agreement
Similar to a pre- or postnuptial agreement, a domestic partnership cohabitation agreement outlines how assets and income will be handled during the relationship and what happens to joint assets if the relationship ends.
Learn More From South Florida Asset Protection Attorneys
From our offices in Miami, we provide asset protection, estate planning and probate services for individuals and families in Miami-Dade County, Broward County and communities throughout South Florida. Call us at 305-574-9083, or contact us by email to arrange an initial consultation with an experienced Miami estate planning attorney.
